Alito vs. Scalia

The two conservative Supreme Court justices brawl over technology and privacy.

GPS technology can follow our every move. When it's done without our knowledge, is it ever constitutional?

Courtesy of Garmin.

In what is certainly the most important pronouncement about privacy, technology, and the scope of the Fourth Amendment right of the people to be “secure in their persons, houses, papers, and effects, against unreasonable searches and seizures,” the Supreme Court handed down a unanimous decision today in United States v. Jones.

But if a coherent legal rule has emerged from all this mess, I can’t for the life of me identify it. In issuing the narrowest possible decision about the most consequential technological dilemma, the court has told us only that what the police did in this one instance was an unconstitutional search. Good luck deciding what it means about your smartphone.

The case involved a suspected drug dealer, Antoine Jones, and the police decision to attach a GPS tracking device to his wife’s car, after obtaining a warrant that had expired, then tracking his every movement for 28 days. Evidence used from that surveillance led to his conviction for conspiracy to sell cocaine. The Court of Appeals for the D.C. Circuit tossed his conviction, finding that the collection of evidence violated his Fourth Amendment rights. This morning the Supreme Court agrees, although it’s not clear at all what they agreed on. The court split into three distinct camps, offering different rationales for finding that an unconstitutional search had occurred.

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Justice Antonin Scalia, backed by Chief Justice John Roberts and Justices Anthony Kennedy, Clarence Thomas, and Sonia Sotomayor, takes the narrowest tack, finding simply that the police’s act of affixing a GPS device to Jones’ car constitutes a trespass, or physical intrusion that “would have been considered a ‘search’ within the meaning of the Fourth Amendment when it was adopted.” Justice Samuel Alito, in a surprising alignment with three of the court’s liberals, objects to Scalia’s entire approach to the case as “unwise,” accusing him of relying on 18th-century trespass law to solve a 21st-century privacy problem. He faults Scalia for relying on centuries-old tort law to resolve an almost inconsequential aspect of the case (police attaching a device to the underside of a car) instead of assessing the matter in terms of the “reasonable expectation of privacy.”

Justice Sonia Sotomayor then writes, agreeing with Scalia’s trespass approach, but adding in a separate concurrence for herself alone, that actually anticipates being read by light bulb as opposed to flickering taper. Even though she’s looking forward and not backward, for Sotomayor, Scalia’s trespass-based approach is the better one: “When the Government physically invades personal property to gather information, a search occurs. The reaffirmation of that principle suffices to decide this case.”

Having said all this, Sotomayor then launches into a terrifying exposition about all the ways in which government surveillance no longer actually requires any physical intrusion, and she notes that Scalia’s majority opinion offers no future guidance for regulating such surveillance. Sotomayor cautions that new surveillance systems will fundamentally alter the relationship between government and citizens. She writes, “I would ask whether people reasonably expect that their movements will be recorded and aggregated in a manner that enables the Government to ascertain, more or less at will, their political and religious beliefs, sexual habits, and so on.” She goes on to warn about an even more worrisome violation of privacy when one’s personal information is voluntarily disclosed to third parties, noting, “I for one doubt that people would accept without complaint the warrantless disclosure to the government of a list of every Web site they had visited in the last week, or month, or year.” Because she joins on with Scalia’s majority opinion, however, these musings are—at least for now—just high-tech musings.

It is Alito’s quarrel with Scalia’s originalist approach that is most interesting today, echoing and even amplifying his jab at oral argument in a case about violent video games last year, that “what Justice Scalia wants to know is what James Madison thought about video games.” At argument in that case, Alito went further, observing that such games represent a “new medium that cannot possibly have been envisioned when the First Amendment was ratified” and that it was “entirely artificial” to analogize the Framers’ attitudes to violent books for children to violent games. Today Alito again invokes the artifice of the Scalia approach, poking fun at his obsession with what the Framers would have done with satellites and lasers by suggesting, “It is almost impossible to think of late-18th-century situations that are analogous to what took place in this case. (Is it possible to imagine a case in which a constable secreted himself somewhere in a coach and remained there for a period of time in order to monitor the movements of the coach’s owner?)” Then to ratchet up the absurdity, Alito answers his own question in a footnote: The teensy constable scenario "would have required either a gigantic coach, a very tiny constable, or both—not to mention a constable with incredible fortitude and patience."

Alito has developed a 21st-century-size fear of technology and privacy intrusions (so much so that Jeffrey Rosen has dubbed him America’s “privacy cop”). He thus worries not only about surveillance and privacy, but also at the public acceptance of raw deals. He writes that “new technology may provide increased convenience or security at the expense of privacy, and many people may find the tradeoff worthwhile. And even if the public does not welcome the diminution of privacy that new technology entails, they may eventually reconcile themselves to this development as inevitable.” Alito also notes the burgeoning use of video monitoring, automatic toll collection, and smartphones that track the location of their users.

Sotomayor goes further, citing other courts that have found that, using GPS, the government is able to track “trips to the psychiatrist, the plastic surgeon, the abortion clinic, the AIDS treatment center, the strip club, the criminal defense attorney, the by-the-hour motel, the union meeting, the mosque, synagogue or church, the gay bar and on and on.” It is she who seems best to understand that this is the real problem the court should be focused on, even though she refuses to address it today.

The critical moment at oral argument in this case came with the chief justice’s question to lawyers for the Obama administration as to whether the police could affix a GPS device to the justice’s own cars. That was when it stop being about fictional Orwellian imaginings and started to be about the justices’ own Pontiacs and Google searches. In a deep way, the fragmented holding today reads as a laundry list of the various authors’ personal Rorschach test. Indeed Alito says as much in his concurrence, noting that the underlying trouble in these privacy cases is that “judges are apt to confuse their own expectations of privacy with those of the hypothetical reasonable person.”

It’s not clear that the court served the reasonable person at all today by handing down an opinion that gives no sense whatsoever of when and how a warrant would be required for government surveillance in the hands-free world of the 21st century, or how long such surveillance could endure before privacy concerns are raised (four weeks = too long!). Maybe it’s enough simply to know for now that at least five justices have a good sense—and a whomping, healthy fear—that what’s barreling down the road requires more than merely wondering what would have happened in a horse-drawn carriage.